eDiscovery Issue: 502(d) Stipulation Provides Absolute Right To Clawback Privileged Information

This short opinion centered on inadvertent production of privileged portions of five draft AIG Board Minutes. In a previous ruling, the court determined these minutes contained privileged information, and the defendants produced the board minutes in redacted form. However, the underlying privileged information was visible to the plaintiffs “when the corresponding metadata was reviewed.”

Determining that no privilege had been waived, the court nonetheless emphasized “the need for counsel for a producing party to keep a watchful eye over their eDiscovery vendors.” Secondly, the court noted that even if defendant’s counsel had “dropped the ball,” the parties entered into a 502(d) stipulation, which contained this salient point: “Production of any documents in this proceeding does not constitute a waiver of any applicable privilege concerning produced documents.” Accordingly, despite the significance that the redacted portions might yield to the plaintiff’s case or the court’s admonition to scrutinize more closely its vendor’s work, the stipulation provided an absolute right to AIG to claw back these documents.The court directed the plaintiff to return all copies of the draft minutes to AIG.

This case illustrates two essential points for litigators. First, a properly drafted 502(d) agreement can mitigate a significant amount of risk regarding inadvertent privilege waiver. Secondly, it highlights the importance of understanding the “form of production” of electronic documents, and the interplay between the technical aspects of producing documents and associated metadata.